Sperm, Egg and Embryo Donation in NY and NJ: What to Know

When you decide to grow your family through third-party assisted reproduction (also called collaborative reproduction) at least one person who does not intend to be a parent to the child is involved. This person could be one or more of the following: a person acting as a surrogate (or gestational surrogate or carrier); a gamete (sperm or egg) donor; or an embryo donor.

If you choose to have a child through egg, sperm or embryo donation, the medical process is complicated enough on its own, but there are also some important legal considerations you should be aware of.

Until recently, New York and New Jersey law was very limited in the protection afforded participants in third-party assisted reproduction. Recent advances in both the caselaw and statutory law now provide much needed security to the legal relationship between intended parents and their children.

SPERM AND EGG DONATION

A common way for single people, same-sex couples and infertile couples to become biological parents is through gamete donation. However, using another person’s eggs or sperm comes with legal complications — mainly dealing with parental rights and parental obligations.

In most cases, when an anonymous sperm or egg donor donates their gametes to an egg or sperm bank, or directly to an IVF clinic, they sign a form releasing them from any parental rights or responsibilities for any child born through their donation. Therefore, when you receive anonymous sperm or eggs from a clinic or gamete bank, the legalities are usually taken care of.

However, if you want to use an egg or sperm donor that you know or one selected by you through a matching entity, you will need to enter into an egg or sperm donation agreement. These agreements are essential because they establish the parties’ intentions and expectations with respect to the donation and, depending on your individual circumstances, the agreement will be important to obtaining a court order securing your legal relationship to your child.

In our experience, donors and intended parents benefit not only from the additional legal security afforded by these agreements but they also benefit from the review process itself. Those who have gone through the detailed process of reviewing these agreements with legal counsel are better informed throughout the medical and legal process.

Because New York and New Jersey laws can be complicated, especially with regard to protecting your parental relationship with a child conceived through gamete donation, it’s important for you to work with experienced attorneys. Rumbold & Seidelman can help you legally protect your rights and the rights of your unborn child by drafting a donor contract.

Some of the issues addressed in the donor contract in NY or NJ are:

Parental rights to the child
Desired confidentiality
Any limits on the use of the gametes
Responsibility for medical expenses
Insurance coverage
Potential legal and medical risks
Compensation — if any — to donors
Whether the parties desire future contact to exchange medical information
Future communication with intended parents, the child or donor

As important as egg donation and sperm donation agreements are, you may still need to take additional steps after the child is born to ensure that your parentage cannot be challenged.

If you are an unmarried couple or a married or unmarried same-sex couple, it is important for you to consult with experienced counsel to determine what further legal action is recommended to ensure that the parental relationship between the child and non-biologically related parent is legally secured.

Same-Sex Married Couples

When a child is born to a same-sex married couple in New York or New Jersey, both parents will be named as parents on the child’s birth certificate. However, being married to the biological parent of the child and being named on a child’s birth certificate will not fully protect your legal relationship to your child. The reason is that many states do not apply the principal of the marital presumption (that a child born in wedlock is the legal child of both spouses) to parents in a same-sex marriage. Therefore, if you are not genetically related to your spouse’s child, it is important for you to take steps to secure your legal relationship to your child to ensure that your parental rights are recognized throughout the United States.

While we understand that this legal process may seem to be an unnecessary cost and inconvenience, particularly at a time when you simply want to enjoy your child, we believe that the benefits derived are worth it.

Unmarried Couples

In New York or New Jersey, unmarried couples having a child together with the assistance of a gamete donor can legally secure the parental relationship of the non-biologically related parent to the child through a second-parent adoption or by obtaining a Judgment of Parentage.

In 2016, the New York Court of Appeals issued a very important ruling addressing the parental rights of the non-biologically related parent of a child conceived through donor insemination. In Matter of Brooke S.B. v Elizabeth A.C.C., the court ruled that when the biological parent and her partner jointly planned the conception of a child with the intent that they would both be parents, the non-biological parent has standing to request custody and visitation with the child even after the relationship between them dissolves.

The decision reversed decades of prior New York case law, and Rumbold & Seidelman was pleased to have participated in drafting one of the amicus briefs submitted to the New York Court of Appeals in this case.

Securing parentage through execution of an Acknowledgment of Parentage (AOP)

While the Child-Parent Security Act (CPSA) makes it much easier for intended parents to obtain a court order recognizing the non-genetic intended parent as the parent of their child, the New York legislature also revised New York’s Voluntary Acknowledgement of Paternity (VAP) provisions to allow non-genetic intended parents of child(ren) conceived through donor insemination (regardless of their gender) to sign an Acknowledgment of Parentage (AOP) form at the hospital securing their legal relationship to their child without requiring them to petition the court for a Judgment of Parentage. Because there are a number of grounds upon which the validity of an AOP can be challenged, it is still a good idea for intended parents to also obtain either an Order of Adoption or a Judgment of Parentage. Nevertheless, the ability to sign an AOP will protect the large numbers of families lacking the financial resources or the forethought to petition the court for a judgement of parentage.

EMBRYO DONATION

Another option for assisted reproduction is embryo donation. This process emerged as a response to the thousands of frozen embryos which are currently being stored by couples no longer needing them to build their families. For a variety of reasons, many people with frozen embryos do not want to destroy them and would prefer to donate them to others seeking to build their families.

Embryo donation can be a great option for single women as well as couples who cannot conceive using their own gametes. Embryo donation (sometimes referred to as embryo adoption) may also enable some to experience their own pregnancy using an embryo created by others.

Embryo Donation in New York and New Jersey

Embryos are sometimes donated anonymously to embryo donation programs. At other times, the embryo donor(s) and embryo recipient(s) deal directly with one another to transfer control and custody of the embryos from the donors to the recipients. In most embryo donation agreements, ownership of the embryos is legally transferred to the embryo recipient(s) once the agreement is signed by all parties. Once that occurs, the recipient(s) have decision-making authority over the embryos and can use them to become pregnant with a child who will be their legal child.

An embryo donation agreement between donors and recipients is a critical step in the process, and it’s important to work with a lawyer with expertise in assisted reproductive technology law. At Rumbold & Seidelman, we can draft the embryo donation agreement to ensure that the rights and obligations of embryo donors and embryo recipients are clearly established and legally protected.

Some of the issues addressed in the embryo donation agreement are:

Parental rights to the child
Desired confidentiality
The disposition of embryos no longer needed for procreation
Responsibility for storage fees
Establishing a mechanism for sharing medical information
Potential legal and medical risks
Whether the parties desire future contact

As members of the Academy of Adoption and Assisted Reproduction Attorneys, we have demonstrated expertise in this field and are among the small group of legal professionals in New York and New Jersey with the experience required to make your contract process as easy and smooth as possible.

Disposition of Frozen Embryos

Whether you are currently undergoing IVF treatments, have embryos that were donated to you or have embryos which you created but are no longer using, we can advise you with regard to the disposition of your embryos.

Every reputable IVF clinic and embryo storage facility will require that you complete a “disposition agreement.” The disposition agreement instructs the IVF clinic or storage facility as to how to handle your cryo-preserved embryos in the event of divorce, separation or the death of one or both of you. Although this disposition agreement can have profound consequences on your ability to use the stored embryos in the future, many people fail to adequately think through their disposition options.

Embryo Disposition Agreements

Importantly, the New York Child Parent Security Act provides spouses or partners with joint dispositional control of embryos with the ability to enter into an agreement transferring legal rights and dispositional control of the embryo(s) to only one of them, provided the agreement is in writing and each person was represented by separate legal counsel before the agreement was signed. If the couple is married, transfer of legal rights and dispositional control can only occur after they are divorced. The person who transfers dispositional control of the embryo is not a parent of any child born thereafter UNLESS they say in writing that they want to be a parent.

Posthumous Conception Using Cryopreserved Embryos

Given the large number of cryopreserved embryos in storage banks across the country, there will no doubt be times when the person who contributed the gametes used to form the embryos passes away while there are remaining cryopreserved embryos. Those with cryopreserved embryos, formed from their genetic material, should seriously consider whether they wish those embryos to be used after their death and, if so, whether they wish the child to be legally recognized as their heir for purposes of inheritance and any survivor benefits. An experienced attorney can help you think though the issues implicated and ensure that your wishes are clearly documented and comply with state legal requirements.

If you have any questions about the legalities of sperm donor agreements and waivers of rights, embryo donation or the disposition of embryos, you can contact us anytime at 914-779-1050 or through our online form.

Even if you just have questions about the gamete donation process, feel free to contact us; we are happy to “demystify” the process for you.